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Media Alerts - Rochester Gas & Elec. Corp. v. Nat'l Labor Relations Bd. - Second Circuit
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January 18, 2013
  Rochester Gas & Elec. Corp. v. Nat'l Labor Relations Bd. - Second Circuit
Headline: Second Circuit Formulates Two-Step Framework to Determine Whether a Labor Union Has Waived its Statutorily Protected Right to Bargain.

Area of Law: Administrative Law

Issue(s) Presented: Whether the National Labor Relations Board properly found that Rochester Gas engaged in unfair labor practices by refusing to bargain over the effects of its decision to discontinue a policy of permitting Union members to take company vehicles home at night.

Brief Summary: Local Union 36 of the International Brotherhood of Electrical Workers (Union) and Rochester Gas and Electric Corp. (Rochester Gas), petitioned for review of a National Labor Relations Board (NLRB) finding that Rochester Gas engaged in unfair labor practices when it refused to bargain over the effects of its decision to discontinue its policy of permitting Union members to take company vehicles home at night. Rochester Gas argued that the Union waived its right to bargain over the effects of the policy change by a provision in the collective bargaining agreement (CBA) between the parties. In support of its cross-petition, the Union argued that the CBA required Rochester Gas to bargain with the Union over both the change in policy and its effects, and that the NLRB's chosen remedy is insufficient to make the affected workers whole.

The Second Circuit outlined a new two-step framework to determine whether the Union waived its statutorily protected right to bargain: (1) whether the applicable CBA clearly and unmistakably resolves the disputed issue, whether with respect to the challenged management decision or the challenged effects; and (2) if not, whether the party asserting the right to bargain has clearly and unmistakably waived that right. The Court found that, although the CBA allowed Rochester Gas to make changes to employee work practices and to control the use of company property, those provisions did not clearly and unmistakably allow it to forgo any negotiation with the Union over the effects of the vehicle policy, or clearly and unmistakably waive the Union's right to bargain over the effects of the policy. The Court also denied the Union's cross-petition and found that that the NLRB did not abuse its discretion in granting the modified remedy.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...4c4413e8dbf/1/hilite/

Extended Summary: Local Union 36 of the International Brotherhood of Electrical Workers (Union) and Rochester Gas and Electric Corp. (Rochester Gas) cross-petitioned the Second Circuit for review of an August 2010 National Labor Relations Board (NLRB) finding that Rochester Gas had engaged in unfair labor practices under the National Labor Relations Act by refusing to bargain with the Union over the effects of its decision to discontinue a policy of permitting Union members to take company vehicles home at night. The NLRB decision had rejected, however, the Union's contention that Rochester Gas was obligated to bargain with the Union not only about the effects of the change in policy, but about the policy decision itself. Rochester Gas argued on appeal that the Union had waived its right to bargain over the effects of the policy pursuant to a provision of the parties' collective bargaining agreement (CBA). In support of its cross-petition, the Union contended that the CBA required Rochester Gas to bargain with the Union over both the decision itself and its effects, and that the NLRB's Transmarine remedy was insufficient to make the affected workers whole.

Section 8(a)(5) of the National Labor Relations Act (NLRA) mandates that employers engage in collective bargaining with employees prior to changing employees' "wages, hours, and other terms and conditions of employment" about both the decision to change the policy and the
effects" of the policy change on employment conditions. Employees may, however, waive their bargaining rights under an applicable collective bargaining agreement.

In evaluating whether the Union validly waived its statutory right to bargain with Rochester Gas here, the Second Circuit set out an explicit two-part test. The Second Circuit asked, first, whether the applicable CBA "clearly and unmistakably resolves the disputed issue, whether with respect to the challenged management decision or the challenged effects" and, second, if not, "whether the party asserting the right to bargain has clearly and unmistakably waived that right." Applying its new framework, the Court found that, while the CBA allowed Rochester Gas to make changes in its employee work practices and to control the use of company property, its provisions did not clearly and unmistakably allow the Company to forgo any negotiation with the Union over the effects of the vehicle policy, nor did they "clearly and unmistakably" waive the Union's right to bargain over the effects of the policy. The Court also denied the Union's cross-petition, agreeing with the NLRB that any claim that Rochester Gas was required to bargain over the policy decision itself had been waived by the removal of that claim from the Union's complaint and further held that the NLRB did not abuse its discretion in granting the Union a modified remedy. In a concurring opinion, Judge Straub agreed with the majority opinion's conclusion that no "clear and unmistakable" waiver occurred under the general provisions of the parties' CBA, but stated the creation of a new formal two-step framework was unnecessary.

To read the full opinion, please go to: http://www.ca2.uscourts.gov/de...4c4413e8dbf/1/hilite/

Panel: Judges Cabranes, Straub, and Livingston.

Argument (if known): 11/15/2011

Date of Issued Opinion: 01/17/2013
.
Docket Number: 10-3448-ag(L)

Decided: Cross-Petitions for Review Denied and Decision and Order or the Board Affirmed

Case Alert Author: Jesse Glickstein

Counsel : JAMES R. LAVAUTE (Brian J. LaClair, of counsel), Blitman & King LLP, Syracuse, NY, for Petitioner Local Union 36, International Brotherhood of Electrical Workers, AFL-CIO; JAMES S. GLEASON, Hinman, Howard & Kattell, LLP, Binghamton, NY, for Petitioner Cross-Respondent Rochester Gas & Electric Corp; ROBERT ENGLEHART (MacKenzie Fillow, on the brief; Lafe E. Solomon, Acting General Counsel, Celeste J. Mattina, Acting Deputy General Counsel, John H. Ferguson, Associate General Counsel, and Linda Dreeben, Deputy Associate General Counsel, of counsel), National Labor Relations Board, Washington, D.C., for Respondent-Cross-Petitioner National Labor Relations Board.

Author of Opinion: Judge Cabranes (majority); Judge Straub (concurring).

Supervisor: Professor Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 01/18/2013 08:03 AM     2nd Circuit  

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